Opinion by
Mr. Justice Patterson,
This is an action for a divorce
a vinculo matrimonii
on the ground of indignities to the person by Harvey H. McKrell, appellee, against Frances Arline McKrell, appellant. The case was tried before a judge without a jury and the libel was dismissed. On appeal to the Superior Court the order was reversed and the record returned with a direction to enter a decree granting an absolute divorce. This Court allowed an appeal.
The parties were married November 19, 1925, at Wellsburg, West Virginia. Following the marriage they lived at Avalon, Pennsylvania. McKrell, then a store manager for the Atlantic and Pacific Tea Company, later attended and was graduated from a chiropractic college and a school of naturopathy. He was subsequently licensed by the Commonwealth of Pennsylvania as a naturopath and opened an office in his residence. Three children, all of whom are living, were born of the marriage. No differences of a serious nature were experienced, and the parties to this litigation, with their
three children, lived a normal happy life for seventeen years prior to June, 1941. Appellee prospered and family relations were harmonious. It was at this time that he secured the services of one Mrs. Eva McAnulty to assist him at the office. She was young and attractive, and. studied at the Universal College of Chiropractics at Oakland. She acted as secretary and stenographer, aided in the adjustment of patients, and made laboratory tests. Immediately after she became his assistant appellee began to remain at his office until twelve and tivelve-thirty in the morning. Rarely, if ever, was he at home with his family, putatively because both he and the assistant worked continuously, not only in the practice but also in the study of their profession. Appellant Avife protested this course of conduct. After having been informed that they had been seen together in public late in the evening, and having seen them upon one occasion in front of a theatre, she began to doubt the truth of his explanation. McKrell never manifested any intention of discontinuing the apparent close association with Mrs. McAnulty. As a result of the tension thus created appellant became troubled and suspicious of his infidelity. She sought the aid of his sister in restoring their previous happy family life. On January 17, 1942, Dr. McKrell, without any explanation to appellant and Avithout having provided for the maintenance and support of Mrs. McKrell and the children, left the family home and has never returned. Later he sent her $25 a Aveek for the maintenance of herself and the three children. He has never attempted, directly or indirectly, to effect a reconciliation.
One year later, in January, 1943, he filed this libel in divorce.
Tbe course of conduct charged by appellee against appellant is as follows: Prior to June, 1941, appellant was continually nagging;
she made no effort to raise herself to the social standard which he was seeking to acquire;
and she failed to conduct herself properly in the presence of patients.
After June, 1941, when he se
cured Mrs. McAnulty as Ms assistant, appellant became jealous and suspicious regarding their true relationship. Mutual professional interests and an increased clientele required that they work together practically every night, and that they attend professional meetings. They returned home together and npon several occasions secured the use of a taxicab rather than walk. Their association was purely for business purposes and his habit of walking home with her every evening was a matter of courtesy, since she lived only a block and a half from the McKrell home. Appellant refused to believe his explanations and on one occasion accused him of being a “whoremaster” and a “dirty lowdown son of a bitch.” Once she telephoned the assistant and called her a “hussy” and a “little whore”, and upon another occasion came to the doctor’s office and left a note in her typewriter, warning her to stay away from Dr. Mc-Krell.
This suspicion and distrust continued to increase. On June 22, 1942, upon returning home late at night from a fraternity initiation appellee found the bedroom door locked and he was denied admittance to the room. Subsequent thereto accusations became more frequent. Appellant attempted to prejudice the children against their father, and in their presence accused him of indecency and improper conduct with Mrs. Mc-Anulty. As a result of this conduct, appellee contends that his professional standing and health have been affected.
Appellant, Mrs. McKrell, denied that she interfered with her husband’s professional practice and that she was unreasonably jealous. She was a good housekeeper
and mother, and prior to 1941 was happy and contented. Before Mrs. McAnulty became his assistant appellee rarely, if ever, came home late at night.
She admits that as a result of her husband’s aforesaid association with Mrs. McAnulty she became suspicious and made accusations intimating infidelity, but denied the same were ever made in the presence of the children or any person other than her husband. Prior to June, 1941, she regularly met appellee in the city on Thursday evenings and they had dinner and enjoyed a movie or a show. After that date this routine ceased. She, however, continued to spend Thursday evenings in town. Upon one occasion she saw appellee and his assistant in front of the Penn Theatre. Several witnesses testified they had seen the appellee and Mrs. McAnulty going into the theatre together. They had been seen together at other places. One, Hazel Wilkie, positively identified them as the couple she had seen “with their arms around each other’s waists” on Euclid Avenue near Mrs. McAnulty’s home.
Mrs. McKrell admitted calling the assistant on the telephone and telling her to stay away from her husband and that she wrote the note above referred to. The incident of the locked bedroom door was admitted. Appellant explained, however, that she was in great need of rest and, to prevent being disturbed by appellee’s habitual arrival at a very late hour, locked the
door. Although the door was locked only upon that one occasion appellee thereafter never expressed any desire to be in the room. Admitting that she had believed rumors regarding the impropriety of appellee’s conduct and his infidelity, she testified at the trial that she did not then believe these rumors were true. She also desired a reconciliation for, despite the circumstances, she still regarded her husband with affection.
After having seen and heard the parties and their witnesses, the hearing judge entered a decree dismissing the libel.
The consideration which appellate courts are required to give to the conclusion of a hearing judge has been ably stated by Mr. Justice Linn in
Wick v. Wick,
352 Pa.
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Opinion by
Mr. Justice Patterson,
This is an action for a divorce
a vinculo matrimonii
on the ground of indignities to the person by Harvey H. McKrell, appellee, against Frances Arline McKrell, appellant. The case was tried before a judge without a jury and the libel was dismissed. On appeal to the Superior Court the order was reversed and the record returned with a direction to enter a decree granting an absolute divorce. This Court allowed an appeal.
The parties were married November 19, 1925, at Wellsburg, West Virginia. Following the marriage they lived at Avalon, Pennsylvania. McKrell, then a store manager for the Atlantic and Pacific Tea Company, later attended and was graduated from a chiropractic college and a school of naturopathy. He was subsequently licensed by the Commonwealth of Pennsylvania as a naturopath and opened an office in his residence. Three children, all of whom are living, were born of the marriage. No differences of a serious nature were experienced, and the parties to this litigation, with their
three children, lived a normal happy life for seventeen years prior to June, 1941. Appellee prospered and family relations were harmonious. It was at this time that he secured the services of one Mrs. Eva McAnulty to assist him at the office. She was young and attractive, and. studied at the Universal College of Chiropractics at Oakland. She acted as secretary and stenographer, aided in the adjustment of patients, and made laboratory tests. Immediately after she became his assistant appellee began to remain at his office until twelve and tivelve-thirty in the morning. Rarely, if ever, was he at home with his family, putatively because both he and the assistant worked continuously, not only in the practice but also in the study of their profession. Appellant Avife protested this course of conduct. After having been informed that they had been seen together in public late in the evening, and having seen them upon one occasion in front of a theatre, she began to doubt the truth of his explanation. McKrell never manifested any intention of discontinuing the apparent close association with Mrs. McAnulty. As a result of the tension thus created appellant became troubled and suspicious of his infidelity. She sought the aid of his sister in restoring their previous happy family life. On January 17, 1942, Dr. McKrell, without any explanation to appellant and Avithout having provided for the maintenance and support of Mrs. McKrell and the children, left the family home and has never returned. Later he sent her $25 a Aveek for the maintenance of herself and the three children. He has never attempted, directly or indirectly, to effect a reconciliation.
One year later, in January, 1943, he filed this libel in divorce.
Tbe course of conduct charged by appellee against appellant is as follows: Prior to June, 1941, appellant was continually nagging;
she made no effort to raise herself to the social standard which he was seeking to acquire;
and she failed to conduct herself properly in the presence of patients.
After June, 1941, when he se
cured Mrs. McAnulty as Ms assistant, appellant became jealous and suspicious regarding their true relationship. Mutual professional interests and an increased clientele required that they work together practically every night, and that they attend professional meetings. They returned home together and npon several occasions secured the use of a taxicab rather than walk. Their association was purely for business purposes and his habit of walking home with her every evening was a matter of courtesy, since she lived only a block and a half from the McKrell home. Appellant refused to believe his explanations and on one occasion accused him of being a “whoremaster” and a “dirty lowdown son of a bitch.” Once she telephoned the assistant and called her a “hussy” and a “little whore”, and upon another occasion came to the doctor’s office and left a note in her typewriter, warning her to stay away from Dr. Mc-Krell.
This suspicion and distrust continued to increase. On June 22, 1942, upon returning home late at night from a fraternity initiation appellee found the bedroom door locked and he was denied admittance to the room. Subsequent thereto accusations became more frequent. Appellant attempted to prejudice the children against their father, and in their presence accused him of indecency and improper conduct with Mrs. Mc-Anulty. As a result of this conduct, appellee contends that his professional standing and health have been affected.
Appellant, Mrs. McKrell, denied that she interfered with her husband’s professional practice and that she was unreasonably jealous. She was a good housekeeper
and mother, and prior to 1941 was happy and contented. Before Mrs. McAnulty became his assistant appellee rarely, if ever, came home late at night.
She admits that as a result of her husband’s aforesaid association with Mrs. McAnulty she became suspicious and made accusations intimating infidelity, but denied the same were ever made in the presence of the children or any person other than her husband. Prior to June, 1941, she regularly met appellee in the city on Thursday evenings and they had dinner and enjoyed a movie or a show. After that date this routine ceased. She, however, continued to spend Thursday evenings in town. Upon one occasion she saw appellee and his assistant in front of the Penn Theatre. Several witnesses testified they had seen the appellee and Mrs. McAnulty going into the theatre together. They had been seen together at other places. One, Hazel Wilkie, positively identified them as the couple she had seen “with their arms around each other’s waists” on Euclid Avenue near Mrs. McAnulty’s home.
Mrs. McKrell admitted calling the assistant on the telephone and telling her to stay away from her husband and that she wrote the note above referred to. The incident of the locked bedroom door was admitted. Appellant explained, however, that she was in great need of rest and, to prevent being disturbed by appellee’s habitual arrival at a very late hour, locked the
door. Although the door was locked only upon that one occasion appellee thereafter never expressed any desire to be in the room. Admitting that she had believed rumors regarding the impropriety of appellee’s conduct and his infidelity, she testified at the trial that she did not then believe these rumors were true. She also desired a reconciliation for, despite the circumstances, she still regarded her husband with affection.
After having seen and heard the parties and their witnesses, the hearing judge entered a decree dismissing the libel.
The consideration which appellate courts are required to give to the conclusion of a hearing judge has been ably stated by Mr. Justice Linn in
Wick v. Wick,
352 Pa. 25: “In determining which of the oral evidence to accept and which to reject, we lack the advantage possessed by the trial judge who, for several days, had the parties and witnesses before him, with ample opportunity to observe them during the trial. The findings of fact made by him have not the same effect on appeal as the verdict of a jury:
Esenwein v. Esenwein,
312 Pa. 77, pages 80 and 81, 167 A. 350. Presumably, a trial judge’s opportunity to observe the parties and witnesses during the trial, became the basis of a rule that ‘when witnesses who are competent and equally interested, flatly contradict each other, the conclusion of the judge who heard them, as to which is to be believed, is not to be lightly disturbed.’
Krug v. Krug,
22 Pa. Superior Ct. 572, 573;
Koontz v. Koontz,
97 Pa. Superior Ct. 70;
Dearth v. Dearth,
141 Pa. Superior Ct. 344, 15 A. 2d 37. In accord with that rule, we have at times resolved doubt in dealing with conflicting testimony, by relying on expressed or implied conclusions of the trial judge.”
“Indignities may consist of vulgarity, unmerited reproach, habitual contumely, studied neglect, intentional incivility, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate and estrangement:
Evans v. Evans,
152 Pa. Superior Ct. 257, 31 A. 2d 590;
Wittmer v. Wittmer,
151 Pa. Superior Ct. 362, 30 A. 2d 174;
Viney v. Viney,
151 Pa. Superior Ct. 86, 29 A. 2d 437. The essential feature of the offense of indignities to the person is that it must consist of a course of conduct or continued treatment which renders the condition of the innocent party intolerable and his or her life burdensome:
Esenwein v. Esenwein,
312 Pa. 77, 167 A. 350;
Davidsen v. Davidsen,
127 Pa. Superior Ct. 138, 191 A. 619”:
Martin v. Martin,
154 Pa. Superior Ct. 313, 317. What is meant by such indignities is left undefined in the law, and depends largely upon the circumstances of each case; they must consist of such a course of conduct as is humiliating, degrading and inconsistent with the position and relation as a spouse. Cf.
Wick v. Wick,
supra, p. 28.
Appellee libellant has not established a case of sufficient merit to warrant the granting of a divorce. Alleged indignities occurring prior to 1941 are trivialities. They are isolated incidents with which the law is not concerned:
Esenwein v. Esenwein,
supra. Appellee’s broad generalization that appellant interfered with his business is supported only by specific reference to one occasion when she read a magazine in his office, and by his conclusion that at one time she must have looked through a keyhole to see him treat a lady patient.
Ad
mittedly, her conduct had in no way injured his business; at no time had it received a set-back but, by his explanations, had increased to such an extent that he was required to spend each day and night at the office with his assistant.
It is clearly established by the testimony of both parties that the disturbed marital relations which finally led to the filing of this suit had its inception in June of 1941 Avhen Mrs. McAnulty became libellant’s secretary and assistant.
The constant bickering and nagging,
directed primarily toward Ms failure to come home at night before twelve and one o’clock and toward his close association with his assistant during these evenings, when considered from the viewpoint of a faithful and devoted wife, cannot be said to constitute a course of treatment unprovoked by him. Attempts to convince her that his explanations were true and that his absence from the home was due entirely to expanding clientele and an obsession to continue the study of his profession must be considered with evidence showing him and his assistant together in public places and his failure in any degree to remove the cause of complaint by discontinuing this close association with her. Despite the protestations of Mrs. McKrell, appellee continued to champion the innocence of Mrs. McAnulty. Rather than ease the distressed mind of his wife, he chose to flaunt his attentions to his assistant before her. He assumed an attitude that the matrimonial difficulties stemmed from an unreasonably jealous and irrational wife and not from any act or course of conduct on his part. It would indeed be arbitrary to say that, in view of the continued association and rumors regarding the same, the fears of the appellant wife were wholly unfounded. Her statement at the trial, that she did not then believe the rumors and her suspicions regarding his infidelity were true, does not remove from this case the circumstances upon which her prior assumption had been based.
Appellee libellant has failed to establish unmerited reproach, habitual contumely, studied neglect, intentional incivility, malignant ridicule, or any other plain manifestation of settled hate and estrangement. He has not shown by clear and satisfactory evidence a course of conduct by her inconsistent with his relation and position as a spouse which has made his condition intoler
able and life burdensome. “ ‘In a proceeding dissolving a marriage contract, the case is not to be disposed of on a doubtful balance of the evidence nor upon unsubstantial inferences. There must be a presentation of a clear and satisfactory case on which the determination of the court may be confidently rested, and one who would win a case of this character must be clear of everything which is charged as a cause of separation against the opposite party;
Edmond’s Appeal,
57 Pa. 232;
Angier v. Angier,
63 Pa. 450.’ ”:
Stein v. Stein,
119 Pa. Superior Ct. 276, 278.
The evidence compels the conclusion that appellant is not entirely to blame for this marital tragedy. If, instead of rushing to defend himself and his assistant, appellee had attempted to understand the feeling of the woman who had been his faithful wife for over seventeen years and the mother of his three children, their common interests, ideals, love and affection could have remained unimpaired.
The decree of the Superior Court is reversed. The order of the court of common pleas dismissing the libel is reinstated and, so reinstated, is affirmed. Costs to be paid by appellee.